IN THE COURT OF COMMON PLEAS IN AND FOR THE COUNTY OF MONTGOMERY, PENNSYLVANIA CRIMINAL DIVISION - - - COMMONWEALTH OF PENNSYLVANIA: vs. NO. 3932-16 WILLIAM H. COSBY, JR. SVP HEARING/SENTENCING HEARING Courtroom A Monday, September 24, 2018 Commencing at 9:15 a.m. Virginia M. Womelsdorf, RPR Official Court Reporter Montgomery County Courthouse Norristown, Pennsylvania BEFORE: THE HONORABLE STEVEN T. O'NEILL, JUDGE COUNSEL APPEARED AS FOLLOWS: KEVIN R. STEELE, ESQUIRE District Attorney M. STEWART RYAN, ESQUIRE KRISTEN GIBBONS-FEDEN, ESQUIRE TRACY S. PIATKOWSKI, ESQUIRE Assistant District Attorneys for the Commonwealth JOSEPH P. GREEN, JR., ESQUIRE ELIZABETH A. REDMOND, ESQUIRE PETER GOLDBERGER, ESQUIRE for the Defendant INDEX COMMONWEALTH'S EVIDENCE Witness VDire Direct Cross Redir Recr KRISTEN F. DUDLEY 33 40 69 92 95 ANDREA CONSTAND 132 GIANNA CONSTAND 133 ANDREW CONSTAND 141 DIANA PARSONS 144 EXHIBITS COMMONWEALTH'S Number Description Marked Rec'd C-SVP-1 Curriculum Vitae of Kristen F. 35 36 Dudley, Psy.D C-SVP-2 Sexually Violent Predator 41 69 Assessment of William Henry Cosby, Jr. - - Sentencing -1 Commonwealth Sentencing 124 128 Memorandum Sentencing -2 Victim Impact Statement 128 128 Andrea Constand Sentencing -3 Victim Impact Statement - 128 128 Andrew Constand Sentencing -4 Victim Impact Statement - 128 128 Gianna Constand Sentencing -5 Victim Impact Statement - 128 128 Diana Parsons EXHIBITS DEFENDANT'S Number Description Marked Rec'd D-SVP-1 Report of Timothy P. Foley, 76 Ph.D. dated 9-11-18 - - - 1 COMMONWEALTH vs. WILLIAM H. COSBY, JR. 5 2 (The following proceedings were 3 commenced with the Court, Mr. Steele, 4 Mr. Ryan, Ms. Feden, Ms. Piatkowski, Mr. 5 Green, Ms. Redmond, Mr. Goldberger, and 6 the defendant being present:) 7 - - - 8 THE COURT: This is the sentencing in 9 the case of the Commonwealth versus William H. Cosby, 10 Jr., at 3932 of '16. Mr. Cosby was convicted on 11 April 26th of 2018 of Counts 1, 2 and 3 of the Bills of 12 Information at that number, aggravated indecent 13 assault. 14 This Court ordered a Sexually Violent 15 Predator Assessment, and at this stage before this 16 Court can proceed with any sentencing, I need to act 17 upon that assessment and subsequent precipe that was 18 filed. 19 So in terms of the procedural 20 background, Sexually Violent Predator Assessment was 21 ordered on 4-26 of '18. It is my understanding that 22 the report of the Sexual Offender Assessment Board was 23 transmitted to the District Attorney's Office on 24 July 13th of 2018. Pursuant to the statute, a copy is 25 not sent to the judge and the Court has never seen a 1 COMMONWEALTH vs. WILLIAM H. COSBY, JR. 6 2 copy of it, nor does it know its contents. 3 Based upon whatever the contents are, 4 the Commonwealth filed a precipe for an SVP Hearing on 5 July 24th of 2018. 6 A defense Motion for Production of 7 Certain Information Collected, Considered, or Relied 8 Upon by the Sexual Offender Assessment Board was filed 9 on August 2nd of 2018. 10 The defendant's Motion for Declaration 11 of Unconstitutionality was filed on July 25th of 2018. 12 The Commonwealth responded to that motion on August 1st 13 of 2018. 14 The defendant filed a subsequent 15 Memorandum of Law in support of its motion on 16 August 9th of 2018, and we are here today on the 17 argument of that motion. 18 It's your motion, Mr. Green. You may 19 commence argument. 20 MR. GREEN: Good morning, Your Honor. 21 The defense contends that the most recent amendments to 22 SORNA under whatever name we apply are 23 unconstitutional. It can't be constitutionally applied 24 to Mr. Cosby because they purport to impose punishment 411 25 retroactively without prior notice and a trial. 7 1 COMMONWEALTH vs. WILLIAM H. COSBY, JR. 2 The elements of that punishment are to 3 be proved not by proof beyond a reasonable doubt, but 4 by clear and convincing evidence according to the 5 statute. And they are to be proved to the satisfaction 6 of the sentencing judge, much like the mandatory 7 minimum sentences that have all been declared 8 unconstitutional. 9 For the reasons set forth in Muniz, it 10 seems clear that the SVP statute is unconstitutional. 11 The amendments don't change those defects. And so the 12 request to have Mr. Cosby declared subject to the SVP 13 sanctions may not proceed. 411 14 The state of the law is going to be 15 determined by the Supreme Court of Pennsylvania. There 16 are a couple of cases there from Montgomery County, and 17 other counties as well, which came to my attention last 18 week. Judge Sarcione has filed that opinion now out of 19 Chester County on one of those cases that runs 60 -some 20 pages. I haven't bothered Your Honor with that. I 21 know there's a lot of other stuff on your plate.. 22 THE COURT: I've read it. 23 MR. GREEN: But the clear direction of 24 the Courts of Common Pleas that have considered these 410 25 questions, starting with Judge Carpenter and through 8 1 COMMONWEALTH vs. WILLIAM H. COSBY, JR. 2 the other cases that have been decided, is for a 3 finding that the statute is unconstitutional. 4 We ask Your Honor to accept the 5 reasoning in those statutes to include that the most 6 recent amendment is going to change the constitutional 7 defects. And I've relied on the memorandum of the 8 authorities cited therein. 9 I'd be happy to answer any questions you 10 have, but that's the essence of our argument. 11 THE COURT: I've read it. I've read 12 your memorandum. I've read a number of the cases 13 cited. 14 Commonwealth? 15 MS. PIATKOWSKI: Your Honor, good 16 morning. Tracy Piatkowski on behalf of the people of 17 Commonwealth. 18 Your Honor, we're here today because the 19 defendant seeks to escape the registration and 20 notification requirements. His crime essentially is 21 ultimately conduct. Specifically, he seeks to escape 22 those applicable to sexually violent predators. He' 23 made several specific claims in his memorandum which I 24 will address in turn later in the argument. Those 41, 25 claims all hinge on one specific legal issue, and that 9 1 COMMONWEALTH vs. WILLIAM H. COSBY, JR. 2 legal issue is whether Pennsylvania's current sex 3 offender registration law, Act 29, is, in fact, 4 punitive. 5 The more specific question before this 6 Court is whether the law is so punitive in effect that 7 it negates the legislature's intent that the law be 8 considered not punitive. Instead, the legislature 9 intends that that law be a civil remedial matter aimed 10 at protecting the community from dangerous sexual 11 offenders who are likely to re -offend. 12 Because the defendant is the person 13 challenging the constitutionality of the law, he is 40 14 required to show by the clearest proof that the 15 statutory scheme, in this case Act 29, clearly claiming 16 it palpably violates the Constitution. Any doubts 17 about that have to be resolved in favor the statute's 18 constitutionality. 19 To be clear, it is not the 20 Commonwealth's burden to prove that the statute is 21 nonpunitive. In fact, it is defendant's burden to do 22 so. And the statute is presumed to be constitutional. 23 Sex offender registration laws generally 24 and in Pennsylvania have a lengthy and complex history, III 25 as I know this Court is well aware. They were first 10 1 COMMONWEALTH vs. WILLIAM H. COSBY, JR. 2 enacted throughout the country in the 1990s, including 3 in Pennsylvania, to respond to the immense public 4 safety threat posed by sexual offenders who, unlike 5 non -sexual offenders, are likely to re -offend at a 6 higher rate. 7 The legislature thought that keeping 8 track of these offenders and making relevant 9 information about them available to members of the 10 community would allow the community to take precautions 11 against the risks of sexual predation. 12 Because not all states' laws prove 13 equal, however, the federal government enacted 14 registration regulating those laws and specifically 15 conditioned certain federal funding to the states on 16 compliance with the federal law. 17 Pennsylvania's law has undergone several 18 rounds of revisions over the years. Although it's been 19 amended many times, one thing has remained constant. 20 And the constant is the reason we have the law. The 21 purpose of these laws is not to shame offenders and 22 never has been. The legislate's purpose has always 23 been to help citizens protect themselves and their 24 children from sexual predation. 110 25 These laws are often referred to as 1 COMMONWEALTH vs. WILLIAM H. COSBY, JR. 11 2 Megan's Law, which were named for Megan Kanka, a 3 seven -year -old New Jersey girl who was sexually 4 assaulted and murdered by a neighbor who, as it turned 5 out, had two prior convictions for sexual offenses 6 against children. 7 I don't mention Megan Kanka to evoke 8 sympathy from the Court or stir the Court's emotions. 9 This portion of today's proceedings is not about 10 sympathy for her or Mr. Cosby or anyone else. It's 11 simply about analyzing the legislative scheme that 12 applies to all sex offenders and those deemed sexually 13 violent predators in the Commonwealth.